53 Neb. 545 | Neb. | 1898
The plaintiff in its petition filed in this action in the district court of Hamilton county pleaded that Alfred L. Bishop, of defendants, was for two years prior to November 24, 1890, engaged in business in the city of Aurora, in this state, selling at retail agricultural' implements, musical instruments, sewing machines, buggies and wagons, etc., and that on the said date he was indebted to plaintiff in sums aggregating about $1,600 for purchases of it of certain portions of the articles which he had in stock for sale; that Deere, Wells & Co., of Council Bluffs,_ Iowa, did business in this state, and under the same firm name and style and on the 17th of December, 1890, the defendant Bishop executed and delivered to Deere, Wells & Co. two chattel mortgages, each, according to its words and figures, being for the purpose of securing the payment to the designated mortgagee the total sum of $13,115.22 in stated sums and at fixed dates. In one of the mortgages as the property thereby subjected to a lien there was described specifically the articles which the mortgagor then had, as a dealer, for sale and in the other certain enumerated stock of the horse kind. It ivas also alleged that on December 26,1890, the plaintiff instituted an action in the district court of Hamilton county against said Bishop to recover an alleged balance then its due from him in the sum of $1,673.44, and at the same time filed in said action its affidavit in attachment, stating therein, among other things, that
To this petition for Alfred L. Bishop there was the following answer: “The defendant Alfred L. Bishop, for answer to the petition of the plaintiff herein, admits that he was in business in Aurora, Nebraska, prior to November 24, 1890, as alleged; admits the bringing of a suit against him by plaintiff, the issuance and service of an
To this answer the plaintiff filed a general demurrer. For Deere, Wells & Co. there was filed a general demurrer to the petition. On hearings the demurrer of Deere, Wells & Co. to the -petition was overruled and that of plaintiff to Bishop’s answer was sustained. Subsequently a stipulation was entered into between the plaintiff and Bishop and filed which was as follows: “It is hereby stipulated and agreed, by and between' the parties to the above entitled cause, that the plaintiff shall take into its possession -the property now held by the sheriff of Hamilton county, Nebraska, under and by virtue of a writ of attachment issued in a certain cause heretofore pending'in this court, wherein the plaintiff herein was plaintiff, and the defendant herein, Alfred L. Bishop, was defendant; that said plaintiff shall be required to account for the sum of $1,450 in lieu of said property, and that the making and entering into this stipulation shall in nowise or manner abridge or affect any of .the rights of either of the parties to this action, and that any judgment or order made in this cause shall operate upon said amount, and that the plaintiff shall be required to apply said amount as may be finally adjudged in said cause, in the same manner and to the same extent as any such judgment or order might be made as against said property.”
Deere, Wells & Co. elected to stand on their demurrer and Bishop to stand on his answer and to plead no further; and on final submission of the cause the court adjudged that the plaintiff be subrogated to the rights of
It is insisted that as to Deere, Wells & Co. the petition did not state a cause of action, hence it was an error to overrule its demurrer thereto. The contention on this point is to the effect that Deere, Wells & Go. was not further interested in the matter and was neither a proper nor necessary party to the action. Creditors to whose rights a party seeks to be subrogated are necessary parties to an action to obtain such subrogation. (Harris v. Watson, 20 S. W. Rep. [Ark.] 529; Bond v. Montgomery, 20 S. W. Rep. [Ark.] 525; Kyner v. Kyner, 6 Watts [Pa.] 227.)
Coming now to the main question raised-and argued, viz., Was the appellant entitled to be subrogated to the rights of Deere, Wells & Co. under its mortgages as against Bishop, the mortgagee, and if so, to what extent? we will call attention to this: That it arises under a demurrer to the answer in which it is claimed that the appellant’s attachment in an action in the same court in which this was instituted, and in which all parties in this were also parties, was adjudicated to be the superior lien;
The right of subrogation is a creation of equity and independent of any contractual relations between the parties. (Memphis & L. R. Co. v. Dow, 120 U. S. 287, 7 Sup. Ct. Rep. 482.)
In Ætna Life Ins. Co. v. Town of Middleport, 8 Sup. Ct. Rep. 625, it was said: “The doctrine of subrogation in equity requires (1) that the person seeking its benefit must have paid a debt due to a third party before he can be substituted to that party’s rights; and (2) that in doing this he must not act as a mere volunteer, but on compulsion, to save himself from loss by reason of a superior lien or claim on the part of the person to whom he pays the debt, as in cases of sureties, prior mortgagees, etc. The right is never accorded in equity to one who is a mere volunteer in paying a debt of one person to another.”
In the case of South Omaha Nat. Bank v. Wright, 45 Neb.
We think that by the adjudication in the Iowa court in the action of conversion (it must be borne in mind thai this occurred prior to any final order or adjudication in the court in this state of the respective rights of the litigants, the appellant and Deere, Wells & Co.) the appellant became entitled to the right and title of Deere, Wells & Co. by virtue of its mortgages to the property; this for the reason that in order to maintain its possession of the property it had been compelled to pay its value to Deere, Wells & Co. Bishop had transferred the property to Deere, Wells & Co. and was not further interested than that its value, its proceeds, should be applied in the extinguishment partially or wholly of his indebtedness to Deere, Wells & Co. The last mentioned party received its value, and to the appellant it seems but fair to accord the continued possession of the goods, and such right or title as it had, by paying the Iowa judgment paid a consideration for to Deere, Wells & Co., — this was the right to the value or proceeds of the property. (See
It is argued for appellees that á long time elapsed between the date of the payment of the Iowa judgment by appellant and the time of this action, and the property was of such a character that it had greatly depreciated in value; hence it would be unfair .to Bishop to have it-applied at the depreciated valuation and he be compelled to pay the balance. This cannot be considered, for the reason that it is not of the pleadings and, consequently, has no place in the case. It is true‘that the parties stipulated that the appellant should be required to account for the sum of $1,450 in lieu of said property, but it was also of the stipulation that it should in nowise or manner abridge or affect any of the rights of either of the parties to the action, and no argument is made that it did so affect'or change any of the rights of the parties, and we will leave it where the parties themselves have been content to leave it, with no particular comment on or discussion of it or its effect.
It follows from what has been said herein that the judgment of the district court was correct and will in all things be
Affirmed.